A federal court in California has denied the defendant’s motion to dismiss in a putative class action alleging false and misleading advertising for defendant’s “Tropicana Pure 100% Juice Pomegranate Blueberry Flavored Blend of 5 Juices from Concentrate with other Natural Flavors.” Zupnik v. Tropicana Prods., Inc., No. 09-6130 (C.D. Cal., decided February 1, 2010). Plaintiffs allege that the product label, which emphasizes the pomegranate and blueberry components of the product by image and size of type constitutes false or misleading advertising in violation of several state statutes. According to the complaint, consumers are misled into believing the juice is primarily pomegranate and blueberry juice when it is, in fact, mostly pear juice. Tropicana argued that the plaintiff lacked standing, her claims were expressly preempted by federal law, and they were not pleaded with particularity. The court disagreed, finding that because the plaintiff claimed she did not get what she paid…
Category Archives 9th Circuit
A California court of appeal recently determined that the Federal Meat Inspection Act (FMIA) preempts point-of-sale or other warning labels on meat products under Proposition 65 (Prop. 65). Am. Meat Inst. v. Leeman, No. D053325 (Cal. Ct. App., decided December 22, 2009). In 2004, Whitney Leeman notified a number of meat processors and retailers in California that she intended to file a citizen suit against them alleging violations of Prop. 65 for their failure to provide warnings that their beef products contained dioxins and PCBs, chemicals known to the state to cause cancer or reproductive toxicity. The companies’ trade association filed a complaint seeking declaratory relief, and the trial court, finding implied, but not express, federal preemption, granted the association’s motion for summary judgment. The court of appeal focused for the most part on defining “labeling,” because Leeman argued that point-of-sale warnings do not constitute labeling under the FMIA, which contains…
The Ninth Circuit Court of Appeals has determined that pet food mislabeling claims should not be certified as a class action because the named plaintiff failed to satisfy the predominance requirement of Federal Rule of Civil Procedure 23(b)(3). Kennedy v. Natural Balance Pet Foods, Inc., No. 08-56378 (9th Cir., decided January 6, 2010) (not for publication). The plaintiff alleged that dog and cat food products labeled with “Made in the USA” were mislabeled because they contained ingredients from China and sought to certify a class of individuals from a number of states. While the court upheld the district court’s class certification ruling because the plaintiff failed to show which consumer protection law would apply to the class claims, it reversed the court’s order dismissing the action for lack of subject-matter jurisdiction. According to the court, the case, which had been removed from state to federal court, should have been returned…
Francis Ford Coppola Presents, LLC has filed a complaint in a California court against a company that makes corks, screw caps, bottles, and other packaging, alleging that defects in the bottles and screw caps purchased for the winery’s Encyclopedia® collection of wines caused the degradation or destruction of 55,000 cases of wine. Francis Ford Coppola Presents, LLC v. Vinocor USA, Inc., No. 26-50585 (Cal. Super. Ct., Napa Cty., filed November 23, 2009). The winery alleges breach of contract, the implied covenant of good faith and fair dealing and the implied warranty of fitness; fraud in the inducement; negligent misrepresentation; negligence; and “for money had and received.” According to the complaint, the affected wine collection “was crafted and designed to be a collection of wines aimed at educating consumers on understanding how geography, history, food and religion, to name a few, all contribute to the making and enjoyment of wine. In…
Unilever United States, Inc. has asked a federal district court to dismiss a putative class action charging the company with falsely advertising its “I Can’t Believe It’s Not Butter”® product. Rosen v. Unilever U.S., Inc., No. 09-02563 (N.D. Cal, motion filed November 30, 2009). According to Unilever’s motion, this is a “Private Surgeon General” case that seeks refunds for products purchased over the last four years because Unilever allegedly (i) falsely claims that its products are “Made With A Blend of Nutritious Oils,” and (ii) fails to disclose that the products contain trace amounts of trans fatty acids. Unilever argues that the claims are preempted by federal law which requires a “zero” trans fat content label if the product contains less than 0.5 gram per serving. The company also seeks dismissal under the dormant Commerce Clause, contending that, “If successful, Rosen will Balkanize [trans fat] labeling rules—one set of rules for California…
The Ninth Circuit Court of Appeals has determined that animal rights activists and organizations lack standing to challenge the U.S. Department of Agriculture’s (USDA’s) interpretation of a 1958 humane animal slaughtering statute in a manner that excludes poultry from its application. Levine v. Vilsack, No. 08-16441 (9th Cir., decided November 20, 2009). The issue arose in a case alleging that “inhumane methods” of poultry slaughter increased the risk of food-borne illness to plaintiff consumers as well as health and safety dangers to plaintiff poultry workers. The court reversed a district court order granting USDA’s motion for summary judgment and remanded the case with instructions to dismiss. According to the court, the plaintiffs had the burden of establishing that their alleged injury “was likely to be redressed by a favorable court decision.” The key to the court’s redressability determination was that the 1958 law’s only enforcement mechanism was later repealed. If…
A Jewish California resident who follows kosher practices has filed a putative class action on behalf of Hari Krishnas, Hindus, Jains, Buddhists, Taoists, Sikhs, Muslims and Jews against Panda Express, Inc., claiming that the restaurant chain fails to disclose that its vegetable menu items are actually made with significant amounts of chicken stock. Adelpour v. Panda Express, Inc., No. BC425869 (Cal. Super. Ct., Los Angeles Cty., filed November 12, 2009). The plaintiff alleges that the company does not state in its restaurants, promotional materials or online that its vegetable dishes, such as “Mixed Veggies,” “Eggplant Tofu,” “Chow Mein,” and “Fried Rice,” are prepared with chicken stock and that she was led to believe that these dishes were vegetarian. She also alleges that she was “explicitly informed” by company servers or shift supervisors that such menu items were vegetarian. The named plaintiff seeks to certify a class of “All California residents…
California residents have filed a putative class action in federal court against the company that makes a number of margarine products, alleging that the products are falsely marketed “as healthful despite the fact its margarines have dangerous levels of artificial trans fat, a toxic food additive banned in many parts of the world.” Red v. Unilever U.S., Inc., No. 09-07855 (C.D. Cal., filed October 28, 2009). According to the complaint, the defendant (i) “specifically markets its margarines as good for cardiovascular health,” (ii) uses “non-standard and deceptive charts” when comparing the nutritional value of margarine to butter, (iii) “misleads consumers by marketing its margarines as ‘cholesterol free,’ implying its products are desirable for those with high blood cholesterol levels,” and (iv) uses “words such as ‘natural’ and ‘nutritious’ to describe products with artificial trans fat and adding images of hearts.” Among the products subject to the litigation are I Can’t Believe…
A California resident has filed putative class claims against the Kellogg Co., alleging that it falsely advertises its Cocoa Krispies® cereal as a boost to children’s immunity. Kammula v. Kellogg Co., No. 09-08102 (C.D. Cal., filed November 5, 2009). According to the complaint, without the support of any “known clinical study,” Kellogg claims that the cereal “has been improved to include antioxidants and nutrients that your family needs to help them stay healthy.” The plaintiff alleges that this practice was intended “to profit from a growing trend in the manufacturing, advertising, and sales of ‘functional’ foods.” The complaint also alleges that “Defendants fail to adequately disclose that other ingredients, including but not limited to sugar, chocolate, high-fructose corn syrup and/or partially-hydrogenated oils, may not ‘help support’ a child’s immunity.” The named plaintiff seeks to certify a class of California residents who purchased Cocoa Krispies® since November 4, 2005, alleging false…
A federal court in California has dismissed without prejudice putative class claims that Nature Valley granola bars were fraudulently promoted as “100% Natural” while containing purportedly non-natural ingredients such as high-fructose corn syrup (HFCS). Wright v. General Mills, Inc., No. 08-1532 (S.D. Cal., decided September 30, 2009). The court refused to dismiss the claims as preempted under federal law or under the primary jurisdiction doctrine, which allows courts to stay or dismiss litigation “pending the resolution of an issue within the special competence of an administrative agency.” The dismissal was based instead on the plaintiff’s failure to plead her claims with sufficient specificity under recent U.S. Supreme Court rulings that have, according to the court, dramatically changed the federal courts’ notice-pleading standard. The court determined that the first amended complaint (FAC) “is based on little more than conclusory and speculative factual content . . . Plaintiff argues that her FAC alleges…
